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Ask Steven K. Your Own Question

Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1573
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I was married 15 years and have received SS for 11 years.

Customer Question

I was married 15 years and have received SS for 11 years. Am able and willing to take SS to zero but ex-husband asking for termination of SS and jurisdiction. I would like to retain court jurisdiction and options in case of unforeseen emergency. I am 57 yo he is 65 yo. What will be the determining factors in this decision? In reality is SS ever resumed once it has been reduced to zero? Under what circumstances has this resumption of SS occurred? Can you refer me to case law and/or articles? Thank you.
Submitted: 1 year ago.
Category: Family Law
Expert:  Steven K. replied 1 year ago.

Steven Kincaid :

I'm not aware of any case law affirming the fact that spousal support may resume after reduced to $0 once jurisdiction to award spousal support has been reserved. However, the California Supreme Court has ruled that in a lengthy marriage, the court must, at a minimum, reserve jurisdiction over spousal support until it can be proven that the supported spouse no longer needs support. In a lengthy marriage the court will almost always retain jurisdiction for an indefinite period of time. Whenever jurisdiction is retained by the Court, spousal support will be ordered if appropriate under the law.

Steven Kincaid :

In deciding whether it is appropriate, the Court will consider these factors:

Steven Kincaid :

  • each party's earning capacity

Steven Kincaid :

  • the obligor's ability to pay

Steven Kincaid :

  • the need of the person requesting spousal support

Steven Kincaid :

  • each party's health and age

Steven Kincaid :

In deciding whether or not to reserve jurisdiction, the primary concern, as stated above, will be the length of the marriage.

Steven Kincaid :

Before a motion for upward spousal support modification may be considered, (such as from $0 to something) the moving party must demonstrate either (1) the prior order, when made, was not sufficient to meet his or her reasonable needs at that time as measured by the applicable Ca Fam § 4320 factors, or (2) the reasonable cost of satisfying those needs has since increased. Having met that burden, the moving party must then prove the obligor's ability to pay increased support.


On the issue of whether the prior order satisfied "reasonable needs," the marital standard of living is only one factor that enters into the balancing process. The trial court has broad discretion in determining the spousal support issue; having considered and weighed all the applicable § 4320 factors, it may fix spousal support at an amount greater than, equal to or less than what the supported spouse may require to maintain the marital standard of living "in order to achieve a just and reasonable result under the facts and circumstances of the case." [Marriage of Smith, supra, 225 Cal.App.3d at 484-486, 274 Cal.Rptr. at 920]

Steven Kincaid :

(Marriage of Smith is a case that addressed increasing spousal support)

Steven Kincaid :

Is there any other information I can provide for you?

Customer:

May I please get clarification. I am currently able to support myself and would be willing to take SS to $0, but in the case of future disability I would like the option of resuming support. My husband is retiring but has substantial assets

Customer:

s

Customer:

and has a retirement income much higher than my full time employment. Is it likely that my husband can force termination of court jurisdiction?

Customer:

Hi Steven

Steven Kincaid :

In a long term marriage it is rare to terminate jurisdiction over spousal support. The judge can do so, but only after considering the relevant factors:

Steven Kincaid :

  1. The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (a) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment; (b) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

  2. The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

  3. The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

  4. The needs of each party based on the standard of living established during the marriage.

  5. The obligations and assets, including the separate property, of each party.

  6. The duration of the marriage.

  7. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

  8. The age and health of the parties.

  9. Documented evidence of any history of domestic violence between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

  10. The immediate and specific tax consequences to each party.

  11. The balance of the hardships to each party.

  12. The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, a “reasonable period of time” generally shall be one-half the length of the marriage. However, the court’s discretion to order support for a greater or lesser length of time is not limited, based on any of the other factors and the circumstances of the parties.

  13. The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.

  14. Any other factors the court determines are just and equitable.

Steven Kincaid :

It is unlikely to be terminated, but yes, it is possible.

Steven Kincaid :

Were you not awarded part of his retirement income as community property?

Steven Kincaid :

If he earned that pension during the marriage and you did not waive your right to the pension, you should be entitled to 50% of the community interest in the pension.

Customer:

The community interest was small at the time of the divorce. He has aggregated most of retirement post separation. I am trying to decide if worth the time and money to fight termination of jurisdiction that I would only use in emergency situation.

Customer:

Do you practice in Calif?

Steven Kincaid :

I am a member of the State Bar of California and practiced there for more than ten years but I am currently practicing in another state.

Customer:

Have you ever seen SS resumed after it was reduced to $0 say in the case of illness?

Steven Kincaid :

At the very least, you can ask that jurisdiction be reserved due to the fact that this is a long term marriage. That does not take much effort and doesn't really cost you anything. You can simply file a declaration responding to his request to terminate and say that you want jurisdiction reserved in case unforeseen circumstances arise.

Steven Kincaid :

You don't need an attorney to do that.

Customer:

OK thank you very much for your prompt advice. Is there a way for specifically requesting you if I need further questions answered? I will accept and sign off.

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1573
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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